​European Court says Scotland must prove no other measure would deliver the same outcome

Minimum alcohol pricing in Scotland has suffered a set back after Europes’s advocate general said the move might compromise rules on free trade.

Yves Bot, who heads the European Court of Justice, said it would only be legal if it could be shown no other mechanism could deliver the desired public health benefits.

MSPs passed legislation in 2012 which set a minimum unit price of 50p after concerted campaigning by third sector organisations including Alcohol Focus Scotland.

This was challenged by the Scottish Whisky Association (SWA) in 2013, when it argued that it acted as a barrier to trade. Its legal bid was initially rejected by the Court of Session in Edinburgh. However, the case was referred to the European court on appeal.

In a legal opinion the advocate general stated that: "a member state can choose rules imposing a minimum retail price of alcoholic beverages, which restricts trade within the European Union and distorts competition, rather than increased taxation of those products, only on condition that it shows that the measure chosen presents additional advantages or fewer disadvantages by comparison with the alternative measure".

“Evidence shows that a minimum unit price of 50p will protect health, cut crime and save lives - Jennifer Curran

Despite the delay, Jennifer Curran, acting deputy chief executive of Alcohol Focus Scotland, said she was confident Scotland was a step closer to implementing the legislation.

“The cheapest, strongest alcohol is mainly bought by harmful drinkers and more than half of all the alcohol sold in supermarkets and off-sales is cheaper than 50p per unit,” she said.

“Evidence shows that a minimum unit price of 50p will protect health, cut crime and save lives.

“By taking this legal action in the first place, the Scotch Whisky Association has undermined the collective view of the Scottish Parliament and they are costing taxpayers thousands of pounds in legal costs.

“It is quite clear that the multinational companies represented by the SWA prioritise their profits over people’s lives.”

The Scottish Government is unable to implement the policy while the legal process is ongoing.

First minister Nicola Sturgeon said: "We welcome this opinion, in which the advocate general confirms that minimum unit pricing is not precluded by EU law, but sets out tests that the national court has to apply.

"Importantly, this initial opinion indicates it will be for the domestic courts to take a final decision on minimum unit pricing.”

The Scotch Whisky Association welcomed the advocate general's opinion.

Chief executive David Frost said: "The opinion encourages us in our long-held view that minimum pricing is illegal when there are less trade-restrictive measures available.

"We await the Court of Justice's final ruling."